DMs reaching decisions

Gordon wrote:

del wrote: Are Decision Makers and Reconsideration Decision Makers including those submitting to appeal tribunal allowed to make decisions without having in their possession the ESA50, additional medical evidence, ESA113 or FRR2? I am aware Atos were in receipt of all evidence.

Excluding above paperwork which appears to have been misplaced by DWP, are Decision Makers allowed to withhold from the Tribunal additional evidence relevant to my case? I can supply Tribunal with the copies.

Every time this question has been asked it appears to have been a can or worms so please bear with me and don't shoot the messenger

To answer your first question, the DM must show that there was sufficient evidence for them to make a Decision, there is no legal definition of what constitutes sufficient evidence nor is there a list of documents that must be available i.e. a Decision can be made without an ESA50.

The DWP are required to withhold anything that comes under the heading of "harmful information" from the appeal pack, this would not include any information that the claimant had supplied as they would obviously have knowledge of this, but could include information supplied by a GP or other Health Care Professional if it was labelled as harmful.

Harmful information includes a diagnosis that that the claimant is not currently aware, for example that they have a life threatening illness, or information that would be detrimental to the claimants health if they were aware of it, this is most usually related to mental health issues. This information can be made available to the claimant, but only on the advice of an appropriate Health Professional.

All of that said, by far and away the most likely reason that information is missing from the appeal pack is that the DWP have lost or at the very least, misplaced it.

You can obviously provide a copy of any documents that you supplied, your GP should have a copy of ant ESA113 or GPFR that they have completed as it should have been recorded in your medical notes. As you have no certain knowledge that the documents were available to the DM when they made their Decision, unless there is an LT54 which should list the documents used, it is worth raising this doubt with the Tribunal panel, as it will help to call into question the Decision that was made.

Gordon

Gordon wrote:

del wrote: I am confused, how can DM in appeal submission state they selected descriptors which related to me when they cannot provide any paperwork via my SAR or in appeal papers showing which descriptors they used?

OK, the situation is clearly confused because you do not know what if any documents were used in the making of the Decision, but things basically fall into two camps;

- Your ESA50, evidence etc. were available to the DM when they made the Decision and were lost after this was done, or

- A Decision was made without the use of the documents.

There is an additional issue if the DM does not, or cannot identify the Descriptors that were met in the making of the Decision as you can argue that it is not valid.

My advice to you is to play dumb with the Tribunal panel, and ask these questions of them, if they do not address them in their proceedings then they are almost certainly opening themselves up to having any Decision challenged by you at the Upper Tribunal.

Gordon